4.15. SR 06-21-2021
Request for Action
To Item Number
Mayor and City Council 4.15
Agenda Section Meeting Date Prepared by
Consent June 21, 2021 Justin Femrite, Public Works Director
Item Description Reviewed by
City of Elk River, Bolton & Menk, Inc., and Peter Beck, City Attorney
Rice Lake Construction Group Agreement to
Reviewed by
Extend Statutes of Limitations and Response
Cal Portner, City Administrator
Action Requested
Approve, by motion, agreement extension of 120 days between the City of Elk River, Bolton & Menk, Inc., and
Rice Lake Construction Group.
Background/Discussion
The City of Elk River is challenging the construction and design of certain parts of the Wastewater Treatment
Facility. Prior to litigation, the parties are required to remedy the question through mediation.
The city and the parties have participated in two rounds of mediation to date. The parties require additional time
to conclude mediation and analyze additional options. To preserve the statute of limitation, in the case mediation
is unsuccessful and litigation is needed, the Council should approve this agreement.
Financial Impact
N/A
Mission/Policy/Goal
N/A
Attachments
Original Agreement
Extension of Agreement
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity.
Updated: August 2020
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
FIRST EXTENSION TO AGREEMENT TO EXTEND STATUTES OF LIMITATIONS
AND REPOSE
This First Extension to the Agreement to Extend Statute of Limitations and Repose(the
“First Extended Agreement”) is entered into by and among the City of Elk River (the “City”),
Bolton & Menk, Inc. (“BMI”), and Rice Lake Construction Group (“RLCG”) (collectively, the
“Parties”).
WHEREAS, the Parties previously entered into an Agreement to Extend Statute of
Limitations and Repose (the “Agreement”) which is attached hereto as Exhibit A and
incorporated by reference.
WHEREAS, the Tolling Date of the Agreement is June 27, 2021, after which time the
Agreement will terminate.
WHEREAS, the Parties wish to supplement the Agreement and extend the Tolling Date
expressed thereinfor an additional 120days.
NOW, THEREFORE:
1.The Parties intend for this First Extended Agreement to supplement the
Agreement and, further, hereby incorporate by reference into this First Extended Agreement the
definitions, terms, conditions, and covenants expressed in the Agreement.
2.For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Partieshereby stipulate and agree that any and all statutes of
limitation or repose relating to the Disputeare hereby extended from the Tolling Date of the
Agreement, calculated to be June 27, 2021,up toand including the 120thday after theTolling
Date(the “First Extended Tolling Date”).The 120day period from the date of the Tolling Date
through the First Extended Tolling Datemay not be relied upon to supportany defense based on
any and all statute of limitations, repose, laches,or waiver. However, the Partiesexplicitly
reserve all defenses available to themas of the date of the Agreement and as supplemented by
this First Extended Agreement and do not waive any defenses available to them as of the date of
the Agreement and this First Extended Agreement. Nothing herein shall be construed as a
shortening of any relevant statute of limitation or repose.
3. The persons signing this First Extended Agreement represent and warrant that
they have authority to execute this agreement on behalf of the listed signatories.
\[SIGNATURE PAGE TO FOLLOW\]
2
Dated this ___ day of June, 2021.
CITY OF ELK RIVER
By:
John J. Dietz
Mayor
City of Elk River
CITY OF ELK RIVER
By:
Tina Allard
City Clerk
City of Elk River
BOLTON & MENK, INC.
By:
Bradley DeWolf
President/CEO
Bolton & Menk, Inc.
1960 Premier Drive
Mankato, MN 56001
RICE LAKE CONSTRUCTION GROUP
By:
Wade Leonard
President
Rice Lake Construction Group
22368 County Road 12
Deerwood, MN 56444